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Syed Ibrahim and ors. Vs. Jalma and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1968)2MLJ83
AppellantSyed Ibrahim and ors.
RespondentJalma and ors.
Cases ReferredOomer Sahib v. Gopaul
Excerpt:
.....or right to prefer an application under section 9 (1) of the act. once the ancestor failed to apply under section 9 (1) that right must be deemed to have been lost as the inchoate right lapsed with the expiry of the period within which that right should be exercised. in this view of the rights of legal representatives it would not be correct to hold that a legal representative like the present petitioners would get an independent right to apply under section 9 (1), apart from possession of any such right on a part of the estate which they have inherited from their ancestor......the time prescribed by law and therefore he lost his right : once the first defendant had lost his right, defendants. 2 to 7, who only stand in the shoes of the first defendant and who have inherited the rights which the first defendant had on the date of his death, could not have filed the applications under section 9 of the act within 30 days from the date on which they were brought on record as parties to the suit. for this purpose, mr. desikan drew my attention to the language employed in section 9 of the act and also the provisions contained in order 22 of the code of civil procedure and section 21 of the limitation act, 1963. oh the other hand mr. t. r. mani, the learned counsel for the respondents, contends that defendants 2 to 7 have been recognised as tenants by the act in their.....
Judgment:

M.M. Ismail, J.

1. The appellants in the above Second Appeal and the Civil Miscellaneous Appeal and the petitioners in the Civil Revision Petitions are the same. Appellants 1 to 3 are the assignees of the fourth appellant (fourth petitioner in the Civil Revision Petitions), who instituted O.S. No. 8l of 1961 on the file of the Court of the Principal District Munsiff, Madurai Town for directing Kader Mohideen Rowther (first defendant) to vacate and put the plaintiff in possession of the suit site after removing the superstructure thereon put up by the first defendant and for directing the first defendant to pay the plaintiff a sum of Rs. 276, the rent arrears for four months and twelve days. The plaint was presented on 18th February, 1961. Summons in the suit were served on the first defendant on 14th March, 1961. On 20th April, 1961, the first defendant filed his written statement. Subsequent to the filing of the written statement, the first defendant died on 17th September, 1961. Thereafter, defendants 2 to 7 were brought on record as the legal representatives of the deceased first defendant, as per order of Court dated 13th October, 1961, in I.A. No. 1669 of 1961. On 3rd November, 1961, defendants 2, 4, 5 and 7 filed O.P. No. 87 of 1961, under Section 9 of the Madras City Tenants' Protection Act, 1921. On the same day, the third defendant filed O.P. No. 88 of 1961 for the same relief. The learned District Munsif considered all the three proceedings together and, by his judgment and decree dated 14th February, 1963, allowed O.P. Nos. 87 and 88 of 1961, dismissed the suit for possession filed by the plaintiff, and directed the sale of the suit site in favour of the petitioners in O.P. Nos. 87 and 88 of 1961 fixing the value of the suit site at Rs. 23,700 and granting one year's time for payment of the said amount. In the meanwhile, it appears that the original plaintiff assigned his interest in the suit site in favour of three persons, and therefore he along with the said three persons preferred A.S. Nos. 157, 158 and 159 of 1963 on the file of the Court of the Subordinate Judge of Madurai, against the decree and orders passed in O.S. No. 81 of 1961 and O.P. Nos. 87 and 88 of 1961. The learned Subordinate Judge, by his judgment and order dated 31st January, 1964, remanded the suit to the lower Court. He agreed with the conclusion of the trial Court that defendants 2, 3, 4, 5 and 7 were entitled to apply under Section 9 of the Act but held that the minimum extent of the land which may be necessary for the convenient enjoyment by them has not been properly determined . He also observed that the suit of the plaintiff for possession should not have been dismissed in the first instance itself, before the petitioners in the original petitions were given an opportunity to pay the price and purchase the property. In this view, he remanded the proceedings to the lower Court, for the purpose of deciding the question in relation to the minimum extent that would be necessary for the convenient enjoyment by the petitioners in the Original Petitions. It is against the judgment of the learned Subordinate Judge in A.S. No. 157 of 1963 in O.S. No. 81 of 1961 that S.A. No. 1875 of 1964 and C.M.A. No. 302 of 1964 have been preferred. C.R.Ps. Nos. 876 and 877 of 1965 have been preferred against the orders of the learned Subordinate Judge in A.S. No. 158 of 1963 in O.P. No. 87 of 1961 be and A.S. No. 159 of 1963 in O.P. No. 88 of 1961 respectively.

2. The principal question that has to be considered is whether the applications filed by the legal representatives of the original first defendant under Section 9 of the Act were competent. If they were competent, no interference would be called for in the Second Appeal and the Civil Miscellaneous Appeal. On the other hand, if the applications were not competent the Civil Revision Petitions will have to be allowed, and the Civil Miscellaneous Appeal and the Second Appeal also will have to be allowed.

3. Mr. K. S. Desikan, the learned Counsel for the appellants, contended that on the facts set out above, the original tenant of the property, namely, the first defendant did not exercise his right under Section 9 of the Madras City Tenants' Protection Act within the time prescribed by law and therefore he lost his right : Once the first defendant had lost his right, defendants. 2 to 7, who only stand in the shoes of the first defendant and who have inherited the rights which the first defendant had on the date of his death, could not have filed the applications under Section 9 of the Act within 30 days from the date on which they were brought on record as parties to the suit. For this purpose, Mr. Desikan drew my attention to the language employed in Section 9 of the Act and also the provisions contained in Order 22 of the Code of Civil Procedure and Section 21 of the Limitation Act, 1963. Oh the other hand Mr. T. R. Mani, the learned Counsel for the respondents, contends that defendants 2 to 7 have been recognised as tenants by the Act in their own right and they are entitled to all the benefits, rights and protection conferred by the Act, and one of the rights being the right to apply for the sale of the property under Section 9 of the Act, they were entitled to apply under Section 9 within thirty days from the date when they were made parties to the suit. ,

4. Before I examine the rival contentions advanced before me in detail, it is necessary to refer to the relevant statutory provisions. Section 2 (4) of the Madras City Tenants' Protection Act defines the word 'tenant' as follows:

'Tenant' in relation to any land:

(i) means a person liable to pay rent in respect of such land, under a tenancy agreement express or implied, and

(ii) includes:

(a) any such person as is referred to in Sub-clause (i) who continues in possession of the land after the determination of the tenancy agreement, and

(b) the heirs of any such person as is referred to in Sub-clause (i) or Sub-clause (ii) (a) : but does not include a sub-tenant or his heirs.

Section 3 states that every tenant shall on ejectment be entitled to be paid as compensation the value of any building, which may have been erected by him, by any of his predecessors in interest, or by any person not in occupation at the time of the ejectment who derived title from either of them, and for which compensation has not already been paid. Section 9 (1) (a) of the Act, so far as is relevant for the present case, is in the following terms:

Any tenant who is entitled to compensation under Section 3 and against whom a suit in ejectment has been instituted or proceeding; Under Section 41 of the Presidency Small Cause Courts Act, 1882, taken by the landlord, may within one month after the service on him of summons, apply to the Court for an order that the landlord shall be directed to sell for a price to be fixed by the Court, the whole or part of, the extent of land specified in the application.

5. For the purpose of a person coming within the scope of Section 9 (1) (a), the following conditions must be fulfilled:

(1) He must be a tenanat as defined in the Act;

(2) He must be entitled to compensation under Section 3 of the Act;

(3) Against that person, a suit in ejectment should have been instituted;

(4) Within one month after the service on him of summons, he must apply to the Court for an order that the landlord shall be directed to sell for a price to be fixed by the Court, the whole or part of the extent of land; and

(5) The land must be specified in the said application preferred by him.

6. Unless all these conditions are cumulatively satisfied, the person cannot come within the scope of the Act. The argument of Mr, Desikan is that one of the conditions of this section is that he must be a person against whom a suit in ejectment has been instituted, and as far as the present case is concerned the suit in ejectment was instituted only against the first defendant and such a suit in ejectment was not instituted against defendants 2 to 7. In this context, Mr; Desikan relies on the provisions contained in Order 22, Rules 3 and 4 of the Civil Procedure Code, wherein it is provided that after the legal representatives of the deceased plaintiff or the deceased defendant have been made parties, the suit shall be proceeded with. According to him, these rules make a distinction between the institution of the suit and the suit already instituted being proceeded with. Consequently, what happens after the legal representatives have been brought on record is not that the suit is instituted by them or against them but that the suit already instituted is proceeded with by them or against them. He also relies on Order 22, Rule 4 (2) which provides that any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant, and contends that to defendants. 2 to 7 only such defences as would be appropriate to them in their character as legal representatives would be available and if any defence open to the first defendant was lost, defendants 2 to 7 cannot revive such a defence and put forward the same. In this context, reference has been made to Section 21 of the Indian Limitation Act, 1963, which, so far as is relevant for the present case, is in the following terms:

(1) Where after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party

(2) Nothing in Sub-section (1) shall apply to a case where a party is added or substituted owing to assignment or devolution of any interest during the pendency of a suit or where a plaintiff is made a defendant or a defendant is made a plaintiff.

7. Based on this, Mr. Desikan argues that, as far as the present case is concerned, there had been only one institution of suit against the first defendant and that when defendants 2 to 7 were brought on record, it could not be said that there had been institution of the suit against them at the subsequent stage when they were brought on record. Mr. K. S. Desikan further invited my attention to the decisions of this Court in Nagammal v. Govindarajulu Naicker : (1958)1MLJ286 , and Srinivasan v. Khader Mohideen Rowther : (1964)1MLJ323 , to the effect that the period of limitation of 30 days provided in Section 9. (1) (a) of the Act cannot be extended.

8. Mr. T.R. Mani, on the other hand, contends that the definition of the word ' tenant' in Section 2 (4) of the Madras City Tenants' Protection Act expressly includes the heirs of the tenant and consequently defendants 2 to 7 are tenants in their own right entitled to all the protections given by the Act. According to the learned Counsel, when defendants 2 to 7 were brought on record as parties to the suit, they did not come on record as representatives of their father or did not derive their right or title from their father but in their own independent right as being persons entitled to the rights conferred by the Act. In that view, the case of defendants 2 to 7 did not fall within the scope of Order 22, Rule 4 of the Civil Procedure Code but fell under Order 22, Rule 10 of the same Code, and consequently the provisions contained in Section 21 (1) of the Limitation Act already referred to alone will apply.

9. I am of the view that the contention of the learned Counsel for the respondents proceeds on a misapprehension. No doubt, the Act recognises the heirs of a tenant as tenants for the purpose of the Act. That will mean that if the original tenant is dead and the heirs continue in possession, they will be entitled to ail the protection which the Act has conferred on a tenant, because they themselves are treated as tenants. For instance, if, after the death of the original tenant, a suit in ejectment is filed against his heirs, they will be entitled to be paid compensation under Section 3 of the Act, and they will be entitled to apply under Section 9 (1) of the Act. But the question is, when the suit has been instituted against a tenant and during the pendency of the suit his legal representatives are brought on record, can it be said that they come on record not because they happen to be the legal, representatives of the original tenant but because in their own right, they themselves are tenants I am unable to hold that, when they are brought on record as legal representative, they are brought on record only in their own right as. statutory tenant recognised by the Act and not as heirs to the right, title and interest of the deceased tenant Consequently, the right of the first defendant to apply under Section 9(1) of the Act, having been lost by his failure to prefer an application within the time stipulated by the section, defendants 2 to 7 who succeeded to his rights and interest cannot claim a fresh opportunity or right to prefer an application under Section 9 (1) of the Act. This view of mine finds support from the decision of Ganapatia Pillai, J., in C.R.P. No. 2408 of 1961, Where the learned Judge has stated as follows:

The necessity for defining a tenant in the Act as including the legal representative would be obvious if we analyse the nature of the right conferred upon, the tenant by the enactment. Under the general law, no tenant had a right to compel his landlord to sell a land upon which the tenant builds a, superstructure. When such a new right was being conferred upon the tenant, it was obvious to. the Legislature that the term tenant by itself was not enough to include his legal representative. The Whole body of persons proposed to be Called tenants by reason of inheritance would be left out of the purview of the Act. That was why the definition of 'tenant' in the enactment had to be so worded as to include a legal representative. This does not lead to the conclusion that a legal representative of a tenant against whom a decree for eviction had been made obtains an independent right to apply under Section 9 (1) apart from the bundle of rights that he inherited from his ancestor. If the ancestor had the right, and he died without exercising it within the time allowed by Section 9 (1), certainly, the legal representative could exercise it; but if the ancestor himself had lost the right either by efflux of time or for any other reason, I am unable to find any ground for concluding that a new right is conferred by Section 9 (1) upon the tenant who is merely the legal representative of the tenant against whom a decree for eviction had been made. The true legal basis for the rights of a legal representative is that he steps into the shoes of his ancestor and inherits what his ancestor left as his estate. The estate left by the ancestor in this case included no doubt the tenancy of the land in question, but attached to that right of tenancy of the land was the inchoate right to apply for purchasing the landlord's interest under Section 9 (1). That right would become a completed right only when an application is made under Section 9 (1) within the time prescribed by law. Once the ancestor failed to apply under Section 9 (1) that right must be deemed to have been lost as the inchoate right lapsed with the expiry of the period within which that right should be exercised. In this View of the rights of legal representatives it would not be correct to hold that a legal representative like the present petitioners would get an independent right to apply under Section 9 (1), apart from possession of any such right on a part of the estate which they have inherited from their ancestor.

I have quoted from that judgment in such extenso, because, if I may say so with respect, that represents the correct position in law. Though the learned Judge was dealing with a case where a decree had been passed and at the stage of execution the legal representatives, sought to file an application under Section 9 (1), still the learned Judge himself pointed out that Whether a decree had been passed or not, it would not make any difference in the legal position. The learned Judge proceeded to observe. '

Let me take an example where no decree had been obtained and ,the suit for eviction was pending. Only one chance is given in that contingency to a defendant to apply under Section 9 (1) and that is within one month of the service of summons in the proceeding upon him. If that opportunity is not availed of, no further opportunity is given to the tenant to apply under Section 9 (1) even if ultimately the decree passed is set aside and a fresh trial is ordered.

In my view, this will be sufficient to hold that defendants 2 to 7 did not have an independent right to file an application under Section 9 (1) of the Act, after they were brought on record as parties to the suit on the death of their father.

10. There is one other ground on which also it can be held that defendants 2 to 7 are not entitled to file an application under Section 9 (1) of the Madras City Tenants Protection Act. I have already pointed out that a person to come within the scope of Section 9 of the Act must be a person against whom a suit in ejectment has been 'instituted. The expression ' to institute ' has got a definite connotation in law, and, in relation to any proceeding, there can be only one institution and that is when the machinery is set in motion and proceedings are instituted or initiated. That is why Section 21 (1) of the Limitation Act, 1963, provides that the suit will be deemed to have been instituted on the date when legal representatives had been made parties to the suit. As far as defendants 2 to 7 are concerned, it cannot be said that the suit has been instituted against them. All that can be said is that they are parties to a pending suit which was instituted originally against the first defendant.

11. Mr. T. R. Mani contends that the expression 'has been instituted 'should be liberally construed and, for this purpose, relies, upon a Full Bench decision of this ' Court in Syed, Oomer Sahib v. Gopaul : AIR1925Mad12 . In that decision, it was held that Section 9 of the Act applies to a case where the suit in ejectment has resulted in judgment but has not been executed or completed by the process of ejectment. In my View, that decision is not of any help to the respondents. A person will be a person against -whom a suit has been instituted, at any stage of the proceedings, whether the suit has resulted in a decree or not, so long as he is the person against whom a suit Was filed. The Full Bench observed:

The sole question is whether at the time the Act came into force the defendant can be described as a tenant against whom a suit in ejectment has been instituted. It is not contended that those words can bear the extreme meaning that any tenant against whom a suit in ejectment had even been instituted--a suit which might have been brought to a completion by execution and ejectment--is within these words of Section 9; but it is contended that it applies to a case where the suit in ejectment has resulted in judgment but has not been executed of completed by the process of ejectment. It seems to me that that contention is fight and that the tenant intended by the section is a person who is threatened with ejectment as the result of legal proceedings instituted against him but has not in pursuance of those proceedings been actually ejected.

It may be noted that the Full Bench decision uses the words 'legal proceedings instituted against him'. Consequently, so long as a person happens to be one against whom proceedings have been instituted, the fact that a decree has been passed against him will not take him out of such description. But the decision of the Full Bench has no application to a case where the suit was not instituted, as in the present case, against defendants 2 to 7 but against the first defendant. Therefore in my view, defendants 2 to 7 do not come within the scope of Section 9 of the Madras City Tenants' Protection Act, 1921, so as to claim the right to apply under that section. I must also point out the fact that the right conferred on a tenant under Section 9 of the Act constitutes a serious inroad into the fundamental right of the landlord to hold his own property and he is compelled to sell the property against his volition. In such circumstances unless the person comes within the four corners of the language of the section, there is no justification for extending the right or the benefit conferred on a tenant by that section to a person who does not strictly fall within the scope of the section.

11. In this view, I hold that O.P. No. 87 of 1961 filed by defendants 2, 4, 5 and 7 and O.P. No. 88 of 1961 filed by the third defendant were not competent, and, consequently, in so far as the Courts below allowed the said applications, they exercised a jurisdiction not Vested in them; with the result, the orders of the Courts below in O.P. No. 87 of 1961 and O.P. No. 88 of 1961 are set aside, and C.R.P. Nos. 876 and 877 of 1965 are allowed. For the same reason, the decrees passed by the Courts in the suit and the appeal and the order of remand passed by the learned appellate Judge have to be set aside and S.A. No. 1875 of 1964 and C.M.A. No. 302 of 1964 have to be allowed. They are accordingly allowed. In view of my conclusion, that defendants 2 to 7 are not entitled to apply for purchase of the land under Section 9 of the Act, it will follow that the appellants succeed in the suit for ejectment. The learned District Munsif in paragraph 11 of his judgment has fixed the value of the superstructure on the site at Rs. 3,612-40 P. That determination of the Value of the superstructure has become final, since the respondents did not prefer any appeal against that conclusion of the learned District Munsif. Though the suit for possession filed by the fourth appellant was dismissed, the learned District Munsif has granted a decree for a sum of Rs. 276 being the arrears of rent in favour of the plaintiff. Consequently, in terms of Section 4 of the Madras City Tenants Protection Act, in the place of the decree passed by the Courts below, there will be a decree declaring the amount by way of compensation for the superstructure, after setting off the arrears of rent due to the appellants, at Rs. 3,336-40 (Rs. 3,612-40--Rs. 276-00); and, on payment by the appellants into the trial Court, within three months from this day, of the said amount, the respondents shall put the appellants in possession of the land with the buildings thereon. There will be no order as to costs in these proceedings. There will be no leave either in the Second Appeal or in the Civil Miscellaneous Appeal.


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